Advice to all doctors facing suspension or other disciplinary measures.
This advice is based on the collective experience of more than 300 doctors who have been wrongly accused of misdoing, that has been collected by the Society of Clinical Psychiatrists and its Study group.
This experience has uniformly been extremely unpleasant as well as deeply unexpected, exposing extra-ordinary malice.
It is strongly recommended that you make a print out of this advice and keep it beside you for reference.
Doctors who have been suspended have a mortality rate of over 2%.
This is higher than the mortality rate for open cardiac surgery and is entirely induced by the employers.
The mortality falls principally into two categories.
(a) clinical depression ending in suicide and
(b) stressed induced myocardial infarction.
The ratio is 2:1. Depression starts off as a simple being fed-up and concerned at being suspended. Then as time drags by and the malice intensifies it becomes even more depressing as you realise the level of hostility against you. This imperceptibly passes into deeper worries about future employment and whether you will driven into exile and if so where. For persons whose culture includes a significant amount of “face” this is particularly depressing.
Social ostracism is common; harassment by both the employer and also by the press is common. The end result is progressive exogenously induced clinical depression which you cannot lift yourself out of it unaided unless the cause is removed. It is vital, for your life’s sake that you obtain professional help, from your GP or from a consultant psychiatrist. If you do use a consultant psychiatrist ensure that this is a person who is not employed by your employer and that your employer has no access to your clinical notes.
Myocardial infarction is four times more common among suspended doctors than other doctors of the same age and sex.
Those particularly vulnerable are the so-called type two personalities, the worriers and perfectionists in whom the thought that their work has been professionally substandard is particularly distressing and undermines their self confidence., while the anxiety about the future and the fact that they have little to no control over what they face adds to the stress.
Hypertension is common, solace by comfort eating occurs, increased smoking can also occur, over consumption of alcohol can occur. The end result is furred up coronary vessels and myocardial infarction.
The experience is that at least 40% of the infarcts are fatal. It is therefore essential that you take low dose aspirin and any measures to reduce hypertension. Again do not try to do this on your own but do it under proper professional supervision.
Crown immunity will not cover legal costs in disciplinary cases.
You must consult your defence bodies and professional associations. There is a curious split between allegations of professional nature and allegations of the personal nature—e.g., contract disputes and so called personal misconduct. The defence bodies will not provide cover for personal allegations Those are dealt with by your professional association., these are the BMA and the HCSA. On a point of law. The House of Lords has ruled that where there is a mixed set of allegations they must be dealt with by the professional route and not the personal route.
Hospital trusts will try to use the personal route as they have much more control over the outcome and can virtually dictate in advance what this will be as the employer uses in-house management who will do what ever the chief executive or medical director wants.
But beware! Occasionally your defence body will abandon you and you will have to fund your own defence yourself. One doctor was abandoned in the middle of a GMC disciplinary hearing, another had to pay many thousands of pounds before having his name cleared as the relevant defence body was “not minded” to provide cover. Under their articles of association the defence bodies are not duty bound to cover you. HCSA cover through outside insurers but the problem there is finding the legal team with the appropriate expertise. If abandonment looks likely do not row with them but arrange a meeting (go with a friend both for support and also who can see the case objectively). Find out what the sticking point is. It may be there is a point you know of but perhaps not realise its significance, which on a frank exchange of the whys could lead to a change of mind. Find out if they would be willing to negotiate a settlement—do not be over enthusiastic about what you would be willing to accept. But remember the opposition might also be willing to settle out of court but are concealing their hand.
One other area is your house insurance. A number of house insurance policies provide cover up to a rather low financial limit. These were devised primarily for aid to Industrial Tribunals and claims for unfair dismissal—constructive or otherwise. Therefore do look at your house policy. You can at least obtain independent advice of where to start. But in the end it is your livelihood that is on the line and you will have to be prepared to pay out. and this can mean taking out extra mortgage money or equity release money It is no use having a large house if you are bankrupt and unemployed because you did not defend yourself adequately.
Facing the charges
The first thing you must check is your contract of employment and under what contractually agreed procedure you signed your acceptance. If the old term and conditions of Service applied and you have not signed any new contract then the opposition cannot impose anything different—it would be a breach of contract.
Make sure that you are not bamboozled into agreeing to any disciplinary procedure that benefits the opposition. If necessary, obtain a court order that they adhere to what you have contractually agreed or face a breach of contract action. If they still insist under threat then tell the hearing that you are attending under protest and that these proceedings will be subject to a breach of contract action. This must be done as accepting without protest in law can be taken as acquiescence. Recent measure cases have tilted the balance in favour of the administration and against the doctor—under the new system you may not have a lawyer defending you.
The charges usually are vague and ill defined. Before you respond demand further and better particulars. Demand also the time and place of the circumstances alleged and name of the persons making the allegations—as they may well hold a personal grudge against you. Management are often duped into making allegations supplied by people with a grudge or professionally jealous (e.g., over private practice!) or because you have been outspoken or whistle blown. Once management firmly commit themselves to disciplinary action they cannot face up to the fact that they have been duped. Point out your reasons why you wish to have the names. If they have collected statements about you from other staff demand to see them all., they will try to conceal or even destroy all favourable statements
Demand under the Freedom of Information Act any information or correspondence made about you with any outside body such as higher echelons of the NHS and in particular what advice they provided (you might need this for a collusion claim in a breach of contract dispute)! If this is refused obtain a Court Order that this must be supplied according to law. If they are less than diligent in supplying these further and better particulars then delay your reply until you have received proper detailed accounts and tell them why it is impossible for you to reply unless you have the proper details. You will have very vague allegations, poor team membership. Bullying, inadequate teaching, harassment, discrimination etc., none of which will be quantified or set in context. —one person’s reprimand is another person’s bullying. Hence the need for further and better particulars—a simple example if you shouted in an emergency situation at a junior colleague whose actions were seriously endangering a patient and immediate action was required to protect the patient –LOOK OUT! WHAT ARE YOU DOING–you could just be accused of shouting at staff.
Then be prepared for a long long wait. The weaker the case against you is, the longer will be the wait whilst the opposition trawl around to find something, anything, to justify the continuance of the suspension. This can mean trawling through expense claims, CV’s. clinical case notes, attendance registers of department meeting., anything to find something. Meanwhile new charges may be invented. and when you have replied to these to show that they were ill founded, they will be abandoned and yet more inventions will take place. Be prepared for this as this can drag out for years and indeed the original charge totally forgotten. The intention is obvious to wear you down, induce clinical depression, make it obvious that no matter what you will not get your job back. Female doctors are more vulnerable in this respect as male managers cannot bear the loss of face that having accused a female colleague wrongly they then have to meet that person professionally at departmental meetings.
Get your personal possessions out of the building as fast as possible including any of your books. Otherwise they will go walk about. This also applies to any administrative directive you may have received and the related correspondence as an attempt could be made to allege of not complying with administrative directives. This is particularly important if you have had some form of administrative function. Try to arrange that any mail or professional journals be redirected to your home. The Post Office is not keen where correspondence is to a large building so its is better to contact the source. Your mail will be intercepted and opened—This is completely unlawful under the Post Office Act but it happens.
Advice and settlements:
Often your legal team will advise settlement. They have a different perspective from yours. They would like the case settled without the battle in the courts or at a hearing. They get their fees .BUT BUT BUT it is extremely important that you are not disadvantaged by the settlement You MUST OBTAIN A DECLARATION IN WRITING THAT ALL CHARGES HAVE BEEN WITHDRAWN. This is vital as if something untoward happens in the future, no matter what; this whole case could be resurrected again to your disadvantage. —It could be a medico legal matter, it could be a disciplinary matter. In any case you may need to cite any refusal to supply such written statements as evidence of malice, particularly if negotiations break down and you go to court. ALSO A WRITTEN UNDERTAKING THAT IF THEY HAVE COMPLAINED TO ANY AUTHORITY WHO THEN ISSUED AN ALERT LETTER TO INFORM THEM THAT THEY ARE WITHDRAWING THE ALLEGATIONS AND SO REQUEST A WITHDRAWAL OF THE ALERT LETTER Remember you will have to live with the settlement for the rest of your life and this could be a feeling that you have been cheated for the sake of a quick cheap settlement.
If it is obvious that you will not get your job back you may have to negotiate a golden handshake. The commercial rate for high paid executives is 2-3 years salary. For the NHS it is 1-2 years salary., It could take you that long to find another job., and for some specialities that are over subscribed you will not find another job and you only hope of work is being a peripatetic locum. Remember that if the settlement refers to a comparison with salary the Tax people will treat it as salary. Consult a financial expert or any possible way to minimise the tax (or negotiate that the settlement figure should be post tax). An offer could be made to help you find alternative employment and give good references. This offer is not worth the paper it is written on. Personnel officers talk to each other over the phone and the poison will be passed on. This is particularly so if the personnel department have invested much time and effort to trying to make a case against you and have lost! Grudges remain.
If you are anywhere near retirement age this may be the best option. An enhanced pension, enhanced in the “exigencies of the service”, allows just over 6 years pension rights. The pension board does not like being asked to bail out a failing hospital. An alternative is early retirement on health grounds—incidentally if reactive or exogenous clinical depression has been diagnosed then this is grounds as you will never be able to trust the employer not to do it again and that will continue the depression.
The Settlement will almost invariably contain a gagging clause. This is against public policy as declared by the Government. There is nothing to stop you telling your MP about the settlement but you must do so within the precincts of the Houses of Parliament—then you will have Parliamentary Immunity
Suspensions involve the whole family. Wives will become depressed. even more so if their clinical knowledge is limited as they think there is “no smoke without fire” It is shock to them to discover the malevolence against you and they have difficulty in appreciating that otherwise reasonable persons would act in this way. The same threats to life that you experience they also will experience. Sometimes, particularly if the marriage is somewhat frail it will lead to a breakdown of marriage and divorce, as the other person cannot cope with the threat of insecurity and uncertainty and also the loss of social status. Be also prepared for shocks to discover who your friends are or people you thought were your family friends, as they desert you. You may get some pleasant surprises too.
The press and publicity:
It is highly likely that there will be a leak to the press. This may be deliberate. The press will exaggerate the allegations and present them in their worst light. You may be advised not to talk to the press when they first get the story. This could then lead to being you or members of your family being door stopped by reporters and perhaps local TV cameramen. Be very guarded about what you say to the press and always demand that your reply is un-attributable. Most of the press honour this in order to get a balanced story. A key point is to find out what the press has been told before you answer them. A biased and lurid story alleging you killed patients could lead to your children being taunted in the school playground “Your daddy is a killer”. This has happened. You may have to go to the school and speak to the school principal to keep an eye out for this. If you feel a need that your side of the story is given ensure this is done by a third party otherwise you could face an additional charge of bringing the hospital into disrepute. The fact that you have told the truth and it is the hospital which has acted disreputably is ignored.
On the whole hospital trusts are not swayed by public opinion. They ignore it but their hackles will rise and will add to the determination to get rid of you. If on the other hand it is obvious that they are going to do this anyway you have nothing to lose and you may find satisfaction at being able to defend yourself and hit back This psychological need is one lawyers seem to be oblivious to.
If you have to go to an Industrial Tribunal inform them that they have failed to follow the ACAS code of staged warnings. This will make the Tribunal rather cross and could help you win your case. Industrial Tribunals cannot enforce a re-engagement but can apply a penalty. Examine the circumstances of your case. See if there is any basis for Race discrimination—the awards are much higher if there is.
Examine the case to see if your Human Rights have been breached. Particularly Article 6 of the right of a fair trial. Lawyers will argue that the Human Rights Act does not apply to private cases (such as employer-employee cases). But if they have issued an alert letter or caused one to be issued this brings it under the Act as they are then acting as a public body allegedly defending the public at large. Breach includes not having a public hearing (unless you agreed in advance not to) and the need to have a tribunal established by law (and not some local hatchet crew conjured up by the hospital.)
House Arrest, gagging and lockout:
Some trusts have tried to impose a form of house arrest. They may demand that you should be confined to your house during the day in case they should ever want to talk to you. Tell them to get lost. The Case law is quite specific about this. A doctor so treated is entitled to take his time about going back to the place of work. There will be an attempt to deny you communication with colleagues and they may be told not to talk to you. This is contrary to the rules/ common law of Free Speech as well as contrary to both the United Nations Declaration and the Human Rights Act.-subject only to the laws of slander, national security and commercial interest. You are not a serf or slave and so tell them that you have no intention of being gagged.
You will be locked out of the hospital, forbidden to enter. You must demand that you have freedom to attend any clinic where you have a medical need—e.g., casualty, and that if you are ill you will not be denied hospital admission. (One doctor was told to remove himself as he was an embarrassment to the hospital—this was whilst he was a patient in the Intensive Care ward). Also demand that you are free to enter the hospital to visit any member of your family who might be admitted to the hospital and indeed the normal rights of any visitor who is visiting an inpatient in the hospital. If this is denied take it up with your MP and the Community health Council (only in Wales now) as being oppressive. If you otherwise need to enter the hospital to gain evidence book this in advance and with a witness so that they cannot accuse you of tampering with the clinical notes. If you are denied access to talk to particular colleagues with a view to obtaining statements for your defence, make a note of this because you will be able to use this in any subsequent court action.
There are strong restrictions as to who can issue an alert letter and if you are a junior doctor this must also involve the post graduate dean. Fundamentally these alert letters are a breach of the Human Rights Act since they determine your civil rights to practice as a doctor in a monopoly health service but where there has been no trial. Case law has already established that if your supervising body (in your case the GMC ) has not taken any action despite being told of the alert letter then the alert letter must lapse. You may have to ram this down the throat of whoever issued the alert letter and be prepared to take them to Court. There is no legal justification for any alert letter that is not followed up by some form of hearing under Article 6 of the Human Rights Act. Alert letters can last for years and you can be unemployed as a doctor for years. You may have to go to an Industrial Tribunal on this—and the penalties are not capped.
One particularly dirty trick is to give a summary dismissal. This is to prevent you from appealing to the Secretary of State against the finding as you can only make an appeal during the period of notice. Therefore before your are told of the verdict inform then that you are appealing against an adverse verdict even before they tell you. You will know by then what to expect. Another point is a Para 190D under the old terms and conditions of service whereby you can still make this appeal but it does have some restrictions.
Be prepared to put a lot of work into the case yourself. Lawyers know neither medicine nor the import of any particular clinical action. You will have to brief them on it and be prepared to quote authoritative evidence, which supports your case. They will have their own experts but supplying this enables them to cross check with the expert. They will also not know the circumstances of the case and its relevance to clinical care—e.g., the extent it was an emergency decision or the lack of laboratory evidence. Cross check on the disciplinary code that is applicable to your case and see if they know it, or provide it.
Last of All:
It is important that you do not let the whole thing engulf your life. The most difficult thing is to develop an alternative interest—write a book, take up painting, or do it yourself, or taking up some community activity or any other hobby. Anything that will allow your mind a few hours respites from over worrying. This is extremely hard to do but could be your saving. There is life outside Medicine.
Hon Secretary Suspended Doctors Group